Expunging Criminal Records - Sacramento County Public Law Library

Transcription

www.saclaw.org
Sacramento County Public Law Library
& Civil Self Help Center
609 9th St.
Sacramento, CA 95814
(916) 874-6012
>> Home >> Law 101
EXPUNGING CRIMINAL RECORDS
Clean Up Your Criminal Record
This Guide includes instructions and sample forms. Links to
download the fillable forms are at the end of this Guide.
Additional copies of this Guide can be accessed at
www.saclaw.org/expungement-guide .
BACKGROUND
“Expungement” is a term used when referring to a process of
cleaning up your criminal record. In this process you request
that the court reopen your criminal case, withdraw the plea or
guilty verdict, dismiss the charges, and re-close the case
without a conviction. In effect, you are no longer a convicted
person. However, the case record itself will still exist, but the
outcome of the case in will no longer be your plea or
conviction, but instead dismissed in the “Interests of Justice,”
or “IOJ”.
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VLSP Criminal Records
Expungement Clinic
www.vlsp.org/criminal.asp
916-551-2155
2411 Alhambra Blvd. Ste. 110
Services Provided: Assistance with
expunging criminal records, including
early termination of probation.
Appointments are made for the week
on Monday mornings. The office opens
at 8:00 a.m., and the line for appts.
begins forming at 6:00 a.m.
Not all convictions can be dismissed. Expungement is limited to cases in which the defendant
convicted of a misdemeanor or a felony that could have been charged as a misdemeanor, and was
sentenced to county jail time, probation, a fine, or a combination of those three. Additionally, the
Penal Codes permitting expungement of criminal records expressly prohibit certain types of
convictions from being dismissed. Most of these exceptions involve serious vehicle code violations
(those that result in two or more points on your driving record) or sexual offenses against minors. For
a detailed list of exceptions see Penal Code (PC) § 1203.4, PC § 1203.4a, PC § 1203.41 and
PC 1203.49.
The laws used in expungement are:
1. PC § 1203.4, is used to expunge cases in which probation was part of the sentence.
2. PC § 1203.4a, is used to expunge cases in which there was no probation.
3. PC § 1203.41, is used to expunge cases in which you were sentenced for a felony, yet you
served time only in a county jail, and not in a state prison.
4. PC § 17, is used to reduce a felony conviction to a misdemeanor, which can then be
dismissed. Felonies meeting the criteria under PC § 17 are often called “wobblers,” meaning
they could be charged as either a felony or misdemeanor.
5. PC 1203.49, is used if your conviction was the result of being a victim of human trafficking.
Disclaimer: This Guide is intended as general information only. Your case may have factors requiring
different procedures or forms. The information and instructions are provided for use in Sacramento
County. Please keep in mind that each county may have different requirements. If you need further
assistance consult a lawyer.
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If you received a state prison term as your sentence, or were convicted of a felony that cannot be
reduced to a misdemeanor, you will need to file paperwork for a Certificate of Rehabilitation, rather
than a Petition and Order for Dismissal. More information is available from the California Department
of Corrections and Rehabilitation at www.cdcr.ca.gov/BOPH/pardons.html.
Although your conviction may be dismissed, restrictions resulting from the conviction cannot. An
expungement does not:
• Remove the conviction from your criminal history. California and FBI criminal history
records will still show the conviction and the subsequent dismissal.
• Seal the court case file from public inspection. The court file remains public record.
• Reinstate your right to possess firearms. In some cases, reduction of a non-violent
felony to a misdemeanor may accomplish this.
• Relieve you of your duty to register as a sex offender. In some cases, this may be
accomplished by a different motion to the court.
• Allow you to omit the conviction from applications for government-issued licenses.
You must disclose your conviction and expungement in your license application.
• Allow you to omit the conviction from application for government employment. If
you are applying for a government job, a job that requires security clearance, or a job that
requires a government-issued license, certificate, or permit, you must disclose the
conviction and expungement.
• Allow you to hold public office, if the conviction prevented you from doing so.
• Prevent the conviction from being used to refuse or revoke a government license or
permit, such as real estate license, teaching credential, security guard certificate, etc.
• Prevent the conviction from being used as a "prior." The dismissed conviction can be
used for determining sentencing enhancements in subsequent convictions.
• Prevent the conviction from being used by the DMV. Expunged convictions may be
used to suspend or revoke driving privileges.
• Prevent the conviction from being used by US Citizenship and Immigration Services.
In many situations, an expunged conviction may be considered for removal or exclusion
purposes.
For most people, the benefits of an expungement far outweigh these restrictions. Under California
Labor Code (Lab) § 432.7, employers cannot ask about arrests that did not end in conviction,
convictions that have been judicially dismissed, or about any diversion or similar programs. If the
employer is aware of any such arrests or programs, they cannot use this information to make hiring,
promotion, or firing decisions.
Once a conviction is expunged, it becomes an arrest that did not end in conviction. Legally, you may
answer “No” to these types of questions when applying with a private employer. Keep in mind,
though, that background checks typically go back 10 years, and employers can see that you had a
conviction dismissed. Answering “No” may look dishonest. A better response may be “Yes, dismissed
in the interests of justice.” When applying for government employment, you must disclose the
conviction and expungement.
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STEP-BY-STEP INSTRUCTIONS
Step 1: Determine if You are Eligible for an Expungement
To be eligible to expunge your conviction, you must meet all the following conditions:
•
•
•
Your conviction must meet the guidelines described in PC § 1203.4, PC § 1203.4a, PC §
1203.41, PC § 17 or PC 1203.49. These code sections provide very specific guidelines about
qualifying charges and sentences. Be sure to read those code sections carefully, because there
are many exceptions.
At least one year must have passed since your conviction. If you served your full sentence,
you will need to wait two years before filing your Petition under PC § 1203.41.
You must have completed the terms of your sentence. In most situations, the court will not
grant an expungement until your sentence is complete. This means you have completed your
period of incarceration and/or probation, and paid all fines, fees, and restitution in full. You must
also appear at all DMV hearings, and pay all DMV fines and fees. If you wish to make a payment,
or set up a payment plan, contact the Department of Revenue and Recovery (DRR) at one of
these locations:
700 H Street
4100 Branch Center Drive
DRR can also be reached at 916-875-7500 or [email protected]. See
www.drr.saccounty.net/Pages/default.aspx for more information.
•
•
If you are still on probation for this (or any other) conviction, you may ask the court to terminate
your probation early. For more information, see the Step-by-Step guide on filing a Motion to
Terminate Probation on our website at www.saclaw.org/motion-term-probation
You cannot be serving a sentence for any offense, or be charged with the commission of
any other offense. If you are still on probation for another offense, you will need to complete the
terms of that sentence, or have that probation terminated prior to petitioning for an expungement.
For more information, see the Step-by-Step guide on filing a Motion to Terminate Probation on our
website at www.saclaw.org/motion-term-probation
Your probation for the conviction you’re trying to expunge must not have been revoked,
and not reinstated.
Step 2: Determine Which Type of Expungement Applies to Your Situation
The type of expungement used depends on the original conviction and sentence. The information
below will help you determine which type of expungement is right for you.
Misdemeanor or Infraction Convictions
• Probation ordered and completed: File a Petition for Dismissal under PC § 1203.4.
• Probation ordered, but not yet completed: File a Motion to Terminate Probation (see the Stepby-Step guide on filing a Motion to Terminate Probation on our website at www.saclaw.org/motionterm-probation ). If that is granted, file a Petition for Dismissal under PC § 1203.4.
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•
•
Probation not ordered: File a Petition for Dismissal under PC § 1203.4a.
Victim of human trafficking: If a defendant has been convicted of solicitation or prostitution,
completed any term of probation for that conviction, and can establish by clear and convincing
evidence that the conviction was the result of his or her status as a victim of human trafficking; File
a Petition for Dismissal under PC 1203.49 .
Felony Convictions
• County Jail and/or Probation ordered and completed: File a Petition under
PC § 17(b)(3) to reduce the felony to a misdemeanor, and Petition for Dismissal under PC §
1203.4 to expunge the misdemeanor.
• Probation ordered, but not yet completed: File a Motion to Terminate Probation (see the Stepby-Step guide on filing a Motion to Terminate Probation on our website at www.saclaw.org/motionterm-probation ). If that is granted, file a Petition under PC § 17(b) to reduce the felony to a
misdemeanor, and Petition for Dismissal under PC § 1203.4 to expunge the misdemeanor.
• State Prison ordered but time served in county jail: File a Petition under PC § 1203.41.
Other Situations: If you are not eligible for the procedures described in this guide, you may need to
apply for a Certificate of Rehabilitation and/or a Pardon. More information is available from the
California Department of Corrections and Rehabilitation at www.cdcr.ca.gov/BOPH .
Step 3: Obtain a Copy of Your Criminal Record
You will need a copy of your criminal record or case information for each conviction you wish to
expunge. Your criminal record or case history includes information essential to filling out the
expungement papers.
To get case information for your post-1988 Sacramento convictions, visit www.saccourt.ca.gov. Click
on “Search for Case Information,” and use the search engine to find your case(s). Users must create
an account on the courts website in order to conduct searches. Name searches and document
downloads will incur a public access fee to reimburse the court for the costs of providing public
access to its electronic records. If you are at the courthouse, you can access the case information
online through one of the court’s kiosks free of charge.
For a copy of your state-wide criminal record, visit a Live Scan fingerprinting site. After providing your
fingerprints and paying the required fee, a copy of your criminal record will be mailed to you. To find a
Live Scan site near you, see www.ag.ca.gov/fingerprints/publications/contact.php. More information
about requesting your statewide criminal history is available at
www.ag.ca.gov/fingerprints/security.php. The fee may be waived if you are low income. Call the
Attorney General’s Records Review unit at (916) 227-3835 for more information.
Step 4: Complete the Required Forms
The Judicial Council forms commonly used in this procedure are:
•
•
Petition for Dismissal (CR-180)
Order for Dismissal (CR -181)
Sample filled-in forms with instructions are available at the end of this Guide.
•
Attached Declaration (MC-31) optional
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It is often a good idea to attach a declaration stating why you want the expungement and explaining
your situation in life. In this declaration, you may want to discuss:
• Your plans for the future;
• The reasons you offended, and how your life is different today than it was before;
• How the conviction has hurt your employment chances;
• If you have received any training or education since your conviction;
• Any occurrence in your life that changed how you interact with your community;
• Any 12-step or religious affiliations you have.
Letters from employers, clergy, or other community members can be convincing, but should not be
attached to your petition. You may provide these to the judge at your hearing.
If you have changed your name since your conviction, fill out the forms with the name under which
you were convicted. Sign the forms with your current name.
You will need to complete a separate Petition for Dismissal (CR-180) and Order for Dismissal (CR181) for each conviction you wish to expunge. (Each conviction may consist of convictions for multiple
offenses).
Step 5: Copy and Assemble Your Documents
Make five copies each of:
• Petition for Dismissal (CR-180)
• Order for Dismissal (CR-181)
• Attached Declaration (MC-031), if included.
Two-hole punch the original and all copies of your documents. Staple each of the copies, but leave
the original unstapled.
Assemble:
• Proof that all fines, fees and restitution are paid in full
• Processing fee or Fee Waiver forms (see Step 6)
• Self-addressed stamped envelope if you want a copy of the signed Order mailed to you.
Step 6: File Your Forms
Expungement forms are filed in the county where you were convicted. For courthouse locations, see
www.courts.ca.gov/superiorcourts.htm. In Sacramento, these are filed at the Gordon D. Schaber
Sacramento County Courthouse, located at 720 Ninth Street in downtown Sacramento. If you are
filing in another county, please be sure to check with that court to determine the correct location to
file.
There is a filing fee for filing your Petition that ranges from $60 to $150 depending on your original
conviction. For more information, see the Step-by-Step guide on Fee Waivers on our website at
www.saclaw.org/fee-waiver-guide .
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Step 7: Attend Your Court Hearing if Required
For many people, no court hearing will be scheduled. Instead, the petition is automatically granted as
long as you have met all the requirements. On your petition, the clerk will indicate the date by which
the court will make a ruling. On or after that date, you can check the court’s website to see if your
Petition was granted. Go to www.saccourt.ca.gov. Click on “Search for Case Information,” and use
the search engine to find your case(s). If a hearing is required for your case, the court will notify you
of the hearing date.
Step 8: If Your Petition is Denied
If you attend the hearing, you may ask the judge what you can do to get your conviction expunged.
You may re-file your petition for expungement in 3-6 months, after you’ve made the changes
recommended by the judge.
FOR MORE INFORMATION
On the Web:
California Courts Self Help Website
www.courts.ca.gov/1070.htm
This website includes a section with information and instructions on cleaning up your criminal record.
Expunging Your Conviction Video
Co-sponsored by the Sacramento County Public Law Library and VLSP of Northern California.
www.saclaw.org/video2/expunging-your-conviction.mpg
This video walks you through preparing the forms necessary for the expungement process. The forms
have changed slightly since this video was created.
Sacramento County Superior Court Dismissal(s) Instruction Sheet
www.saccourt.ca.gov/criminal/docs/1203-4-dismissal-process.pdf
This guide describes the procedures and requirements for dismissing a conviction in Sacramento.
At the Law Library:
How to Seal Your Juvenile and Criminal Records in California
KFC 1194 .Z9 S53 (Self-Help)
California Criminal Defense Practice KFC 1155 .C342 Chap. 103
Electronic Access: On the Law Library’s computers, using the LexisAdvance.
California Criminal Law Procedure and Practice KFC 1155 .C35 Chap. 4
Electronic Access: On the Law Library’s computers, using OnLaw.
California Criminal Practice: Motions, Jury Instructions, & Sentencing
KFC 1155 .A65 R83 Chap. 59.
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE
MATERIALS LISTED, DON’T HESITATE TO ASK A REFERENCE LIBRARIAN.
8/16 rmm
H:\public\LRG-SBS\SbSs\SBS_Records_Expungement
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ATTACHMENTS: FORMS AND INSTRUCTIONS
The Judicial Council forms commonly used in this procedure are:
•
•
•
Petition for Dismissal (CR-180)
Order for Dismissal (CR -181)
Attached Declaration (MC-31) optional
Sample filled-in forms with instructions are available at the end of this Guide.
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Your name, address, and phone
number. “In Pro Per” means you
are representing yourself.
Your name and birthdate
Case number for the conviction
you’re trying to expunge
Date of conviction
Type of offense
Code and Section you were convicted of violating
If your offense was a felony, but
could have been charged as a
misdemeanor, type Yes to indicate
it may be reduced under PC § 17.
If probation was ordered in your case, check the
box next to 2. Then check box a, b, or c,
depending on which best describes your
situation.
If probation was not ordered in your case, check the
box next to 3. Check box a if you have not been
charged or convicted of a crime since this case. Check
box b if you have had subsequent criminal cases, and
attach a declaration explaining why this expungement
is
8 in the interests of justice.
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If you have completed probation
for a conviction under PC
647(b); PC 1203.49 conviction
was a result of being a victim of
human trafficking
If you only were sentenced to state prison, yet you
served time only in a county jail, then you will be
eligible to have your record expunged under the new
law California PC 1203.41.
Note: You are asking the court that any eligible
felonies get reduced to misdemeanors
Sign and Date
Check 1203.4 if probation was ordered;
1203.4a if probation was not ordered;
1203.41 if state prison time was served
in a county jail; 1203.49 if the
conviction was a result of being a victim
of human trafficking.
Enter your address
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Your name, address, and phone
number. “In Pro Per” means you
are representing yourself.
Your name and birthdate
LEAVE THE REST OF THIS FORM BLANK!
The judge will complete this form after reviewing your petition.
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Your name
Your case number
LEAVE THE REST OF THIS FORM BLANK!
The judge will complete this form after reviewing your petition.
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Parties in the original case
In your own words, tell the court why you want to expunge your
conviction. Consider including information like:
• Your plans for the future;
• The reasons you offended, and how your life is different
today than it was when you offended;
• How the conviction has hurt your employment chances;
• If you have received any training or education since
your conviction;
• Any occurrence in your life that changed how you
interact with your community; and
• Any 12-step or religious affiliations you have.
Check “Defendant”
Print name, Sign and Date
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Sample Sacramento Criminal Record Report
Your case number
89M01234
123456
98765
Code section you were convicted of violating
Date of conviction
Misdemeanor or Felony
Terms of your sentence
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Expunging Criminal Records - Sacramento County Public Law Library

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